Lee Sik Cheung and Others v. The Queen

CACC000311/1965

CRIMINAL APPEAL NO. 311 OF 1965

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Coram: Hogan, C.J., Rigby, S.P.J., and Scholes, J.

Date of Judgment: 13 October 1966

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JUDGMENT

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1. The facts of this case have been set out when dealing with the appeals of the 3rd and 4th appellants; it is unnecessary to repeat them. The first appellant LEE Sik Cheung has appealed against his conviction for importing dangerous drugs and being in possession of dangerous drugs. It will be convenient to deal first with the second of these charges.

2. Counsel for this appellant has argued two grounds of appeal in connection with this charge:-

3. We do not think that the primary complaint raised in the first ground can be sustained as the jury had before them the appellant's statements to the police in which he claimed that his knowledge of the drugs was derived from Tsang Choi at a late stage and, in the judge's summing-up, reference was made to these statements at length so that the jury was fully aware of the appellant's contention that he was unaware of the presence of the drugs until after he had delivered them to the farm; no further direction by the judge as to the significance of this contention was really necessary, though it would not have been out of place; but this ground does raise by implication, wider issues of some difficulty on the judge's direction.

4. When dealing with the onus of proof, in his direction on this charge, the judge said:-

The judge then referred to the statement of the accused and ended by saying:-

"Now the 1st accused has said nothing more, and so there the case remains. If you think that what he said suggests a reasonable probability that he did not know that there were any drugs there, that he did not know that there were drugs there at all, then you should acquit him of the possession of dangerous drugs. If on the other hand you think that he either knew there were drugs there, or has not convinced you that he did not know they were there, then you should find him guilty of the offence charged. It is for you to decide.".

5. In directing the jury on the first charge, that of importation, the judge had told them that there was an absolute prohibition on importation and, consequently, the ordinary rule about knowledge or "mens rea" did not apply. As shown by the foregoing quotations, he introduced his direction on the second charge, that of possession, with the word "similarly". This might have been thought to imply that the prohibition against possession of drugs is also an absolute prohibition and that there was no need to establish "mens rea" in respect of it, but the subsequent passages indicate that what he wished to convey was that the presumption introduced by section of the Dangerous Drugs Ordinance - a presumption which he treated as applicable to the possession charge - created a state of affairs not unlike that which prevails when there is an absolute prohibition, because it modifies the Crown's obligation to prove knowledge.

6. When there is an absolute prohibition, irrespective of knowledge, the presumption provided by section 15 can have little or no relevance; but the section does not have precisely the same effect as an absolute prohibition. It does not obliterate the need to prove knowledge in every respect. Before it comes into play the Crown must establish the conditions which give rise to the presumption. The judge's direction is, in this respect, open to criticism as it does not sufficiently emphasize or clearly show that before the presumption can arise - the presumption which, until the contrary is proved, deems the accused to have been in possession of and to have known the nature of the dangerous drugs - the Crown first had to prove beyond reasonable doubt that the accused was in possession, custody or control of the bill of lading relating to the bamboo poles, or that he had in his possession or custody or under his control the bamboo poles themselves, and that the poles contained dangerous drugs. The judge's direction does not distinguish adequately between the two stages; the initial stage when the burden of proof is on the Crown, and the subsequent stage when it shifts to the accused by reason of the statutory presumption arising from possession.

7. Although there are passages in his summing-up which imply the necessary distinction, the general effect of this part of the judge's direction might well have left the jury with the impression that from the outset knowledge was presumed and the responsibility for rebutting it rested with the defence. Nevertheless, it is necessary to consider whether that error can have led to any substantial miscarriage of justice. In our opinion, having regard to the overwhelming nature of the evidence that the first appellant was in possession, custody or control of the bill of lading and of the bamboos containing drugs, we do not think that any jury, properly directed in regard to the onus of proof, could have failed to find these proved. We see no reason to question the subsequent finding, clearly implied by their verdict, that the accused had failed to displace the presumption of knowledge as to the presence of the drugs inside the bamboo. Consequently, we see no reason to interfere with the conviction of the first accused on the charge of possession.

8. We return, then, to the appeal on the importation charge. Counsel for the appellant contended that there was no evidence before the court below that the "Chefoo", the ship which was alleged to have carried the bamboo poles containing the opium, had entered the territorial waters of Hong Kong from outside the country on or about the 4th February, 1965, the date on which the appellant was alleged to have imported the opium into this territory. We find no substance in this contention. There was ample evidence both oral and documentary that the ship had arrived from Bangkok on that date. A clerk of the shipping company gave such evidence and both the bill of lading and the ship's manifest were to the same effect.

9. On the importation charge the judge apparently treated the prohibition imposed by the Dangerous Drugs Ordinance as absolute, thus relieving the prosecution of the obligation to prove "mens rea". No such submission had been made to him by the Crown and consequently there had been no argument about it in the court of trial. On both charges the Crown apparently put forward its case against this accused on an equal footing and did not seek to draw any distinction between the prohibitions imposed in respect of importing dangerous drugs and of being in possession without a licence. In support of this approach, it might be argued that if section 10 of the Ordinance, which contains both prohibitions, intended that one should be absolute whilst the other required the ordinary proof of "mens rea", some such distinction would appear in the section. There is no such distinction in section 10 itself. Importation, though not possession, is however also referred to in section 5. Before us, counsel for the Crown has suggested that the combination of these two sections has the effect of making the prohibition on importation absolute whilst leaving that on possession to fall into the normal category requiring "mens rea". It is not easy to see why the repetition of the same words in section 5 should necessarily have this effect but there is always the possibility that the "subject matter" would justify a distinction and cogent support for the argument that the ...(illegible) on importation is absolute can come from the decision of the Full Court in the Cathay Pacific Airways Ltd.⁽¹⁾ and Pan American World Airways Incorporated⁽²⁾ cases, where the word "import" appearing in the unmanifested Cargo Order was so interpreted. If an absolute prohibition was imposed by that legislation it is perhaps not unreasonable suggest that the use of the same word in the Dangerous Drugs Ordinance has the same effect.

10. Mr. Yu did not really seek to argue the contrary but he maintained that even if there is an absolute prohibition, it applies only to the actual physical brings in of dangerous drugs and does not apply to those who merely cause dangerous drugs to be brought in, although the definition of "import" appearing in the Ordinance embraces both activities.

11. In support of this view, it may indeed be urged that it would be most unfair if a man, who had ordered particular articles to be sent from a source outside Hong Kong, were to be held guilty of a crime because somebody, without his knowledge, connivance or approval and in the absence of any negligence on his part, had slipped into the parcel consigned to him, and which he believed to contain nothing but the innocent goods which he had ordered, a quantity of opium. The position of a man who physically brings in the article himself is different because he has an opportunity of satisfying himself that there is nothing, which it is improper to import, concealed in the article. If he does not take appropriate precautions then he only has himself to blame. Possibly the true distinction here might rest on the contention that, whereas the man who physically brings in a container within which there is something else may properly be regarded as having brought in the concealed article, a man who merely orders an article from abroad, such as a dozen kettles, cannot properly be said to have caused to be brought in some entirely different and alien article which, without his connivance or negligence, another person conceals within those kettles. But on this, as on other charges under the Ordinance, the presumption prescribed by section 15 could well be available so that in the prescribed circumstances the burden of showing that he did not know of the concealed article might fall on the accused. If this is the true explanation and the judge was right in telling the jury, as he did, that the word "import" involved an absolute prohibition, should he then have gone on to point out to the jury this distinction between "bringing in" and "causing to be brought in", since he had already told them that the word "import" comprised or included both activities? None of these matters was canvassed in the court below nor have they been fully argued before us.

12. We do not think it necessary to reach any final conclusion on them in the present proceedings because in view of the evidence, any jury which had found, as this jury did on the possession charge, that the presumption under section 15 was not rebutted, could not, in our opinion, properly have acquitted this appellant on the charge of importation whether directed that the prohibition was absolute or required "mens rea". In the latter event the presumption under section 15 would, we think, apply to the importation charge as it did to that of possession and the result must, we think, have been the same.

13. It was, for these reasons, that we dismissed the application by the 1st appellant for leave to appeal against the convictions on the two charges made against him.